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Saturday, March 28, 2015

"Religious Freedom" and Bullying in Michigan—Throwback Thaturday

Since the Hobby Lobby v. Burwell decision—which granted closely-held corporations protection under the Religious Freedom and Restoration Act from the PPACA requirement to offer health insurance plans to employees that would have included birth control without copay—and the clarification that the RFRA only provides protection from federal laws, many states have taken those as a cue to pass their own version of the RFRA to "protect religious freedom" from "substantial burden" by state and below-state governing bodies. This is, of course, a dominantly Republican push.

Michigan is one such state where Republicans are trying to pass such a law, and considering that it was one of the first bills to be drafted for consideration by the State Senate during the 2015-2016 calendar (being only #0004), it's easy to see that religious people must be on the verge of some pretty harsh persecution. Or something. SB 0004 follows HB 5958, which passed the House at the end of the 2014 session with what appears to be language identical to that in the senate bill. So, if the new bill gets to the House, it's likely it'll just get passed again and head to Snyder's desk. (However, I am not sure if Snyder will sign it.)

Many groups opposed to this are afraid that the bill will allow companies to discriminate against LGBT couples by refusing service to them. To be fair, this is speculative, but only because of current conservative outrage over anti-discrimination legislation that actually is keeping religious companies from doing just that. And, you know, because that's even what the House Speaker says it's for, and because an amendment affirming the bill is not for that purpose was voted down by (you guessed it) Republicans. While these might not be as extreme of some purported effects that won't take place, such as an EMT refusing to help a dying gay person, anyone who thinks that refusing service to someone based on that customer's demographic is acceptable in any circumstance should probably go back to the 1950s where they (also don't) belong.

The intent is clearexplicit in-yo-face, and our own group opposes the legislation as well. However, I recently thought of one other possible "un"intended consequence, as I recall a particular bill that was introduced and passed in the State Senate back in 2011. That bill was "Matt's Safe School Law" (SB 0137), and within that bill was a clause that stated the following (my bolded emphasis):

Sec. 1310.B(8): "This section does not abridge the rights under the First Amendment of the Constitution of the 1963 of a school employee, of a school volunteer, pupil, or a pupil's parent or guardian. This section does not prohibit a statement of sincerely held religious belief or moral conviction of a school employee, school volunteer, pupil, or a pupil's parent or guardian."

This language was balked at nationally (even Colbert mocked it), and was removed in a subsequent version introduced in the House and ultimately signed into law by Snyder. I've had a suspicion for a while that such language wasn't rolled back because the original authors had some miraculous change in heart, given that some other bills (like here and here and here) have been introduced that would allow, say, employees in the medical field to refuse service to people due to a sincerely held moral belief, or adoption agencies the right to refuse service to homosexual couples, so on. One can probably see how this idea of religiously-motivated bullying being A-OK could, potentially, raise its ugly head again.

The Michigan version of the RFRA gives people protection from acts of "government" (the definition of which, in the bill, would include school districts) that substantially burden exercises of religion, and subjects such restrictions to strict scrutiny, i.e. the government interest in enacting those provisions has to be compelling, narrowly tailored to actuate that interest, and a least restrictive means.

But what in the world does this mean for the policies that school boards had to put in place to come under compliance with Matt's Safe School Law? What is the least restrictive punishment for a student that bullies a student out of religious conviction for being gay? A note on that student's record? A stern talking-to? Are suspensions a valid punishment, expulsions or withholding diplomas? Are punishment tiers least-restrictive enough for multiple offenses? Is a letter to the perpetrator's parents (required by MSSL) too restrictive on the students' religious convictions?

I'm not terribly worried that any student will actually succeed in making a good case since students tend to have restricted rights in school matters anyway. That's not really to say that some students (or their parents) won't try to make such a case and sue districts for punishing religiously-motivated bullying. I think that I'll be using this type of case as a litmus test of sorts, though, for what religious conservatives themselves think this bill will allow. We'll win in this type of battle; but, we'll also see if it even has to be fought. And probably be quite sad if it does.